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AGLO 1970 No. 78 - May 18 1970
Attorney General Slade Gorton

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                                                                   May 18, 1970


Honorable Louis Bruno
State Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington 98501

                                                                                                               Cite as:  AGLO 1970 No. 78



Dear Sir:

            This is written in response to your recent request for our opinion on a question pertaining to a certain appropriation made to the state superintendent of public instruction by the 1969 legislature under the provisions of § 1, chapter 282, Laws of 1969, Ex. Sess.

            This appropriation act, in so far as it is material to your question, reads as follows:

            "That a budget is hereby adopted and subject to the provisions hereinafter set forth the several amounts hereinafter specified, or so much thereof as shall be sufficient to accomplish the purposes designated, are hereby appropriated and authorized to be disbursed for salaries, wages and other expenses of the agencies and officers of the state and for other specified purposes for the fiscal biennium beginning July 1, 1969, and ending June 30, 1971, out of the several funds of the state hereinafter named.

            ". . .


            ". . .

            "General Fund Appropriation:  PROVIDED, That not to exceed $4,054,000 shall be available for urban and/or racial and disadvantaged educational programs including not to exceed $100,000 for State office administration expenses...........$4,054,000"

            After making reference to this appropriation, you have asked the following question:

             [[Orig. Op. Page 2]]

            "May these funds be allocated directly to nonprofit, nonstatutory organizations such as Council for Advancement of Human Welfare, Inc., Neighborhood House, Inc., Grays Harbor Community Action Council, Day Care, Inc., etc., for the purpose of providing tutorial assistance and other educational components for preschool children while in attendance at day care centers? . . ."

            In our opinion, this question must be answered in the negative.


            It is, of course, fundamental that the state superintendent of public instruction (to whom this appropriation was made), like any other state officer or agency, has only such powers as have been expressly granted by the Constitution or the legislature, or as are necessarily to be implied from powers which have been expressly granted.  Accord,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).

            Moreover, these powers must ordinarily be found in some general law of continuing effect, and not in such an appropriation act as that quoted above.  Such an appropriation act as this is not a general law, but rather, it is a special type of act of only limited duration:  In the words of the Washington court inState ex rel. Pub. Co. v. Lindsley, 3 Wash. 125, 127, 27 Pac. 1019 (1891), it is

            ". . . an authority from the legislature, given at the proper time, and in legal form, to the proper officer, to supply sums of money out of that which may be in the treasury in a given year to specified objects or demands against the state. . . ."

            InSellers v. Frohmiller, 42 Ariz. 239, 246, 24 P.2d 666 (1933), another court expressed this same point as follows:

            "The general appropriation bill is not in the true sense of the term legislation; it is,as the language implies, merely a setting apart of the funds necessary for the use and maintenance of the various departments of the state government already in existence and functioning.  State v. Thompson, 316 Mo. 272, 289 S.W. 338. . . ."  (Emphasis supplied.)

            See, also, 42 Am.Jur., Public Funds, § 43.  The  [[Orig. Op. Page 3]] essential function of an appropriation is merely to provide for the disbursement of funds from our state treasury in compliance with Article VIII, § 4 (Amendment 11) of our state Constitution, which provides:

            "No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."

            Thus, while the appropriation item which is the subject of your question has the effect of allocating or earmarking the sum of $4,054,000 of monies in the state general fund during the 1969-71 biennium for disbursement by your office for ". . . urban and/or racial and disadvantaged educational programs . . ." your substantive authority to draw upon this appropriation and expend it must be found in the general laws governing the operations of your office.

            We have carefully examined these general laws and have found none presently in effect under which the state superintendent of public instruction can now be said to have the authority to distribute appropriated funds ‑ irrespective of the purposes for which they have been appropriated ‑ to such "nonprofit, nonstatutory" organizations as you have referred to in your letter.1/   Instead, it appears to us that the only distributees to which these funds may be disbursed are public school districts ‑ as a part of the state's general program for providing financial support to these districts.  See, e.g., RCW 28.41.130.

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours

Philip H. Austin
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This is not to say, necessarily, that such authority could not be granted in the future by the enactment of appropriate general legislation.